Earlier this week, Immigration and Customs Enforcement (ICE) officials announced the opening of a new detention center in Southern California.
I have a better idea. Build an immigration court. Hire some new judges. Update equipment and add support staff.
As a long time practitioner of deportation defense, I know how badly the judiciary is overworked.
And I understand how this undermines the ability of immigrants to defend themselves at immigration court.
Reforming The Immigration Court System: Problems, Solutions, And Obstacles
A few years ago, in my capacity as a Riverside immigration lawyer, I was interviewed by a graduate student writing his master’s thesis on the immigration court system.
In particular, I criticized the lack of fairness in deportation cases, the bias of immigration judges, and the flawed nature of condensed hearings and trials.
I stressed the need for an overhaul of the entire system.
After talking to this fellow off-and-on for a few weeks, he said the presiding immigration judge and I disagreed on almost everything related to immigration law and the immigration legal system.
His thesis was turning into a two-person debate, almost as if we were talking directly to each other.
Given past interactions with my adversary, I was not surprised by our opposing views.
I emphasized my respect for the judge, stressing he was one of my preferred adversaries because our disagreements remained intellectual disputes at all times. Other judges, I confided, seem to take my assertiveness as a personal attack or professional rudeness.
Again, the young man told me the judge said almost the same about me. I chuckled. At least we agreed on our views about each other.
The Quest To Overhaul The Immigration Court System
Earlier this year, the Executive Office For Immigration Review (EOIR) issued a long overdue Ethics and Professionalism Guide For Immigration Judges.
I was surprised to find the inclusion of four provisions validating my “debate” position with the presiding judge:
- Section IV, Professional Competence
- Section V, Impartiality
- Section VIII, Acting In A Neutral And Detached Manner
- Section IX, Acting With Judicial Temperament And Professionalism
It was not the only news about our immigration courts this week. A widely-circulated article entitled “How To Fix Massive Crisis In Immigration Courts” discussed several problems plaguing our immigration court system.
Case Backlog At Immigration Courts
Recently, the immigration court’s workload was also the topic at a recent Senate Judiciary Committee hearing.
At the hearing, entitled “Improving Efficiency and Ensuring Justice in the Immigration Court System,” experts addressed the growing caseload confronting our immigration court system.
The ICE Viewpoint
A former high ranking ICE officer during the Bush administration, Julie Myers Wood, testified, “Since the 1986 amnesty, inconsistent enforcement, coupled with an inefficient and restrictive pathway for legal access to the country, have left us with a broken immigration system. The immigration courts are a key part of this system.”
She stated the immigration court system continues to take in more cases than it decides each year, causing an increasing backlog of unresolved cases.
In fiscal year 2010, she pointed out, the immigration courts received over 392,000 new cases from DHS, but only resolved 353,000.
The Immigration Court Perspective
Juan Osuna, EOIR Acting Director, focused on cases which involved court hearings. He noted that in FY 2010, 325,326 new proceedings were started in immigration courts.
At present, there are 268 judges in 59 immigration courts.
When these numbers are broken down, they show a broken immigration court system.
Each judge must issue 1,213 decisions per year or slightly over 100 decisions per month. This equals about 20 decisions per week or four per weekday. These figures do not include regular hearings, nor time off for absences due to illness, training, or conferences.
Osuna echoed Wood’s position on the increasing backlog.
At the end of FY 2010, immigration courts had 262,622 unfinished court proceedings still pending. This was a 40,000 increase over the amount of proceedings pending at the end of FY 2009.
The backlog continues to get longer. In the first half of FY 2011, Osuna said, the pending unfinished caseload grew by an additional 9,400.
Board of Immigration Appeals Overload
The Immigration Court’s backlog, Osuna highlighted, creates similar problems with the Board of Immigration Appeals, the appellate body for immigration court decisions.
The BIA, he said, issued more than 33,000 decisions in FY 2010. The BIA is composed of 15 Board Members. This means 2,200 decisions per Board Member per year, or 183 per Board Member per month.
Or viewed another way, each appeal is decided within 55 minutes.
Again, my analysis assumes 100% work attendance. It does not include coffee breaks.
Having handled countless immigration appeals, I know it’s impossible to adequately read the court transcripts, study the pleadings, motions, and evidence filed by the parties, and research the legal and factual issues under dispute in such a short time frame.
Over the years, I have wondered why many BIA opinions are low-quality, short decisions. Some BIA decisions fail to discuss the main issues. Others address issues in a summary format.
The BIA statistics answer that question.
Justice and fairness demand more time for contemplative thought, both at the immigration trials and immigration appeals levels.
The Impact Of Mass Incarcerations
Karen Griesez, the American Bar Association representative, addressed overcrowding from a different stance.
Griesez highlighted one of the major causes of the increased court dockets. The number of immigrants removed from the U.S., said Griesez, grew from 69, 680 in FY 1996 to 393,289 in FY 2009 – more than a 450% increase.
This is linked to an increase in filings of deportation cases by the Department of Homeland Security.
Immigration proceedings, as Osuna explained, begin when DHS files a formal charging document, called a Notice to Appear (NTA), with the immigration court.
According to Griesez, the number of NTAs issued by DHS to initiate deportation proceedings grew by 36% in just two years, from 213,887 in FY 2006 to 291,217 in FY 2008.
She added these numbers are expected to increase even more in the near future.
With DHS efforts to apprehend, detain, and remove immigrants through programs like the Secure Communities expanding, the work imposed on immigration courts will continue to grow
Although some short-term fixes have been proposed, the politics of immigration reform have prevented enactment of potential solutions.
For example, in a well-documented study last year, the American Bar Association recommended hiring 100 additional judges. To date, only 38 new judges have been added. It’s unlikely any more will be hired in the near future. For politicians opposed to immigration reform, fixing the immigration court system is an undesired nuisance.
As noted in Deportation Defense: ICE Modifies Immigration Removal Policy For Green Card Applicants, even the U.S. Immigration and Customs Enforcement jumped in with suggestions to help reduce the court’s overload.
Under one proposal, ICE leaders recommended cases be reviewed immediately upon detention of immigrants. Where appropriate, they asserted, cases should not filed at immigration court.
Their efforts failed.
Immigration reform opponents cried foul play. After they put pressure on the Obama administration, the ideas quickly died.
The net effect of overload is undue stress on immigration judges and our immigration legal system.
Judges are constantly short on time. They have limited time for legal research. They have limited time for immigration hearings and trials.
Much of the inappropriate judicial temperament and professionalism exhibited at times by immigration judges can also be traced to the same issue.
Why An Independent Immigration Judiciary Is The Real Solution
However, the biggest flaw is the lack of judicial independence.
It is common knowledge immigrants face a system slanted against them. The law is designed to limit the amount of immigrants we accept each year.
Right or wrong, this means immigrants, who are placed in immigration court hearings, must overcome odds far lower than 50-50 to win legal residency.
Additionally, they face judges who work for the same employer – the federal government – as government lawyers who seek the deportations.
In fact, just a few years ago, during the Bush Administration, political patronage corrupted the immigration court system.
Under former Attorney General Alberto Gonzalez, immigration judges were chosen based on their immigration views and political loyalties, not their legal knowledge and professional qualifications. Many appointees had little, if any, immigration law experience.
Returning to my office after immigration hearings in those years, I sometimes joked it seemed like I had to educate the new judges about various immigration law provisions. Little did I know, my comments were on point.
Fortunately, this political bias ended after just a few years.
Still, most immigration judges take an anti-immigrant stance to adjudicating cases. Their posture is dictated by a fear of opening floodgates for immigrants. Thus, they place excessively restrictive interpretations on many immigration rules and regulations.
Whether or not they admit it, as an arm of the federal government, immigration judges have a propensity to protect positions asserted by government attorneys in deportation and removal proceedings.
As a result, immigrants are confronted not only by laws slanted against them, but also by judges tilted in an antagonistic posture.
In my mind, under such a setup, there can be no true judicial impartiality, neutrality, or detachment.
The solution, as the ABA emphasized, is an independent immigration tribunal. In other words, the immigration court must become an independent entity, separated from the government branch whose attorneys come before it on a regular basis.
This would not eliminate all the problems of our current immigration court system. But it would elevate immigration courts to a level of respect beyond that of unwanted step-children.
In other words, a complete overhaul of our immigration system would still be needed.
Justice Deferred, Due Process Denied
In the current political climate, spending money on improving the immigration court system is not a priority.
Yet, absent such funding, in a system where the caseload of immigration courts is directly tied to DHS enforcement activities, immigration courts cannot keep pace.
Without Congressional support, immigration courts are doomed to inefficiency.
In a court system riddled with massive overload, can due process for immigrants truly exist?
By Carlos Batara, Immigration Law, Policy, And Politics